MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 09 2016, 6:27 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Gregory F. Zoeller Danville, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of C.B., a Child November 9, 2016 alleged to be Delinquent, Court of Appeals Case No. 32A01-1604-JV-873 Appellant-Respondent, Appeal from the Hendricks Superior v. Court. The Honorable Karen M. Love, Judge. State of Indiana, Cause No. 32D03-1512-JD-337 Appellee-Petitioner.
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 1 of 7 Statement of the Case [1] C.B. was adjudicated a delinquent for committing an act that would be 1 intimidation, a Level 6 felony, if committed by an adult. C.B. now appeals,
contending that the evidence is insufficient to support his adjudication. We
affirm.
Issue [2] The sole issue presented in the appeal is whether there is sufficient evidence of a
prior lawful act to support C.B.’s adjudication.
Facts and Procedural History [3] In November of 2015, Christine Pate was the manager of the Woodland Trace
Mobile Home Community in Plainfield, Indiana. Part of Pate’s duties were to
oversee the tenants and the properties, and to ensure that the children living
there were complying with park rules. During the four to five years she had
held this job, Pate had many encounters with C.B., who was twelve years old in
November of 2015. She described many of the interactions with him as
addressing general “orneriness.” Tr. p. 43. On one recent occasion, however,
C.B. was “caught defacing a light pole with a spray can of paint.” Id. After
Pate brought C.B.’s parents to the scene, C.B. yelled at Pate that “this is not
over until I say it’s over.” Id. C.B.’s mother chased him around the pole,
1 Ind. Code § § 35-45-2-1(a)(2) and (b)(1)(A) (2014).
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 2 of 7 “smacking at him.” Id. Other damage had occurred in the park, but could not
be directly attributed to C.B.
[4] C.B. testified that he was getting in trouble with Pate for “doing fun stuff” with
his friends. Id. at 53. He thought that she was mean and that she had told him
to stop having fun “about 500 times.” Id.
[5] On November 18, 2015—a Wednesday, which was Pate’s day off—at around
4:00 p.m., Pate was at home watching television. C.B. had gotten off the bus
and went directly to Pate’s trailer. Pate described on direct examination what
happened next as follows:
It was a Wednesday, it was after 4:00 Wednesday so usually my day off. [C.B.] came to my home banged on my door, not knocked, banged after school. I opened the door and he stands there screaming at me, I know what you’re doing, I know what you’re doing, you’re getting rid of X—I cannot say the tenants [sic] names—then you’re going to get rid of X and then us. He said I’ll get a gun and come shoot you. . . . I told him to get off my deck, not once but twice I told him to get off my deck. He walked down the steps, turned around and gave me his dead stare and then walked down the street to his house. Id. at 42-45.
[6] The following exchange took place on cross-examination:
Q: You said that [C.B.] said I know you are evicting X and then Y and then us and you said the first part of that statement is true, what do you mean by that? A: We did evict someone out of the park that he was talking about.
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 3 of 7 Q: And this was on November 18th? A: It was on a Wednesday, the date, I’ll say it’s the 18th, I don’t remember the exact date. It was after 4:00 when the bus let the kids out. Id. at 46.
[7] On December 18, 2015, the State filed a delinquency petition against C.B.
alleging that he had committed the crime of intimidation, a Level 6 felony if
committed by an adult. At the conclusion of the fact-finding hearing on March
14, 2016, the juvenile court found that the State had proved beyond a
reasonable doubt that C.B. had committed the offense, but took the matter
under advisement because the charging document specified the wrong victim.
On April 4, 2016, the juvenile court entered a true finding of intimidation and
placed C.B. on supervised probation for six months. C.B. now appeals.
Discussion and Decision [8] When the State alleges that a juvenile should be adjudicated a delinquent for
committing an act that would be a crime if committed by an adult, the State
must prove every element of that offense beyond a reasonable doubt. Al-Saud v.
State, 658 N.E.2d 907, 908 (Ind. 1995). On appellate review of a challenge of
the sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of the witnesses. Id. We will consider only the evidence most
favorable to the judgment and reasonable inferences therefrom. J.B. v. State,
748 N.E.2d 914, 916 (Ind. Ct. App. 2001). We will affirm if the evidence and
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 4 of 7 those inferences constitute substantial evidence of probative value to support
the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).
[9] The charging document alleged that C.B. “did communicate a threat to another
student, with the intent that the other person be placed in fear of retaliation for
a prior lawful act, to-wit: stated ‘I know what you are trying to do evicting
Alex in Lot 5 and trying to get rid of Heather Neal in Lot 28 and us. . . I will get
a gun and come back and shoot you.’ The threat was to commit a forcible
felony.” Appellant’s App. p. 16. The juvenile delinquency report submitted to
the juvenile court correctly identified the victim as Pate and not another
student. Id. at 6. The report further alleged that “Pate stated that she was
planning on evicting the Lot 5 resident due to lot violations but the others that
[C.B.] thought she was trying to evict was incorrect.” Id.
[10] The State was required to prove beyond a reasonable doubt that C.B.
communicated a threat to Pate with the intent to place Pate in fear of retaliation
for a prior lawful act. Ind. Code § 35-45-2-(a)(2) & (b)(1)(A). To establish that
C.B. committed intimidation, the State must prove that the legal act occurred
prior to the threat. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). If the
threat does not place the person in fear of retaliation for a prior lawful act, then
the conviction or adjudication cannot stand. Id.
[11] Considering the evidence most favorable to the adjudication, there is evidence
of a threat to commit a forcible felony communicated to Pate with the intent to
place Pate in fear.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 09 2016, 6:27 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Gregory F. Zoeller Danville, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of C.B., a Child November 9, 2016 alleged to be Delinquent, Court of Appeals Case No. 32A01-1604-JV-873 Appellant-Respondent, Appeal from the Hendricks Superior v. Court. The Honorable Karen M. Love, Judge. State of Indiana, Cause No. 32D03-1512-JD-337 Appellee-Petitioner.
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 1 of 7 Statement of the Case [1] C.B. was adjudicated a delinquent for committing an act that would be 1 intimidation, a Level 6 felony, if committed by an adult. C.B. now appeals,
contending that the evidence is insufficient to support his adjudication. We
affirm.
Issue [2] The sole issue presented in the appeal is whether there is sufficient evidence of a
prior lawful act to support C.B.’s adjudication.
Facts and Procedural History [3] In November of 2015, Christine Pate was the manager of the Woodland Trace
Mobile Home Community in Plainfield, Indiana. Part of Pate’s duties were to
oversee the tenants and the properties, and to ensure that the children living
there were complying with park rules. During the four to five years she had
held this job, Pate had many encounters with C.B., who was twelve years old in
November of 2015. She described many of the interactions with him as
addressing general “orneriness.” Tr. p. 43. On one recent occasion, however,
C.B. was “caught defacing a light pole with a spray can of paint.” Id. After
Pate brought C.B.’s parents to the scene, C.B. yelled at Pate that “this is not
over until I say it’s over.” Id. C.B.’s mother chased him around the pole,
1 Ind. Code § § 35-45-2-1(a)(2) and (b)(1)(A) (2014).
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 2 of 7 “smacking at him.” Id. Other damage had occurred in the park, but could not
be directly attributed to C.B.
[4] C.B. testified that he was getting in trouble with Pate for “doing fun stuff” with
his friends. Id. at 53. He thought that she was mean and that she had told him
to stop having fun “about 500 times.” Id.
[5] On November 18, 2015—a Wednesday, which was Pate’s day off—at around
4:00 p.m., Pate was at home watching television. C.B. had gotten off the bus
and went directly to Pate’s trailer. Pate described on direct examination what
happened next as follows:
It was a Wednesday, it was after 4:00 Wednesday so usually my day off. [C.B.] came to my home banged on my door, not knocked, banged after school. I opened the door and he stands there screaming at me, I know what you’re doing, I know what you’re doing, you’re getting rid of X—I cannot say the tenants [sic] names—then you’re going to get rid of X and then us. He said I’ll get a gun and come shoot you. . . . I told him to get off my deck, not once but twice I told him to get off my deck. He walked down the steps, turned around and gave me his dead stare and then walked down the street to his house. Id. at 42-45.
[6] The following exchange took place on cross-examination:
Q: You said that [C.B.] said I know you are evicting X and then Y and then us and you said the first part of that statement is true, what do you mean by that? A: We did evict someone out of the park that he was talking about.
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 3 of 7 Q: And this was on November 18th? A: It was on a Wednesday, the date, I’ll say it’s the 18th, I don’t remember the exact date. It was after 4:00 when the bus let the kids out. Id. at 46.
[7] On December 18, 2015, the State filed a delinquency petition against C.B.
alleging that he had committed the crime of intimidation, a Level 6 felony if
committed by an adult. At the conclusion of the fact-finding hearing on March
14, 2016, the juvenile court found that the State had proved beyond a
reasonable doubt that C.B. had committed the offense, but took the matter
under advisement because the charging document specified the wrong victim.
On April 4, 2016, the juvenile court entered a true finding of intimidation and
placed C.B. on supervised probation for six months. C.B. now appeals.
Discussion and Decision [8] When the State alleges that a juvenile should be adjudicated a delinquent for
committing an act that would be a crime if committed by an adult, the State
must prove every element of that offense beyond a reasonable doubt. Al-Saud v.
State, 658 N.E.2d 907, 908 (Ind. 1995). On appellate review of a challenge of
the sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of the witnesses. Id. We will consider only the evidence most
favorable to the judgment and reasonable inferences therefrom. J.B. v. State,
748 N.E.2d 914, 916 (Ind. Ct. App. 2001). We will affirm if the evidence and
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 4 of 7 those inferences constitute substantial evidence of probative value to support
the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).
[9] The charging document alleged that C.B. “did communicate a threat to another
student, with the intent that the other person be placed in fear of retaliation for
a prior lawful act, to-wit: stated ‘I know what you are trying to do evicting
Alex in Lot 5 and trying to get rid of Heather Neal in Lot 28 and us. . . I will get
a gun and come back and shoot you.’ The threat was to commit a forcible
felony.” Appellant’s App. p. 16. The juvenile delinquency report submitted to
the juvenile court correctly identified the victim as Pate and not another
student. Id. at 6. The report further alleged that “Pate stated that she was
planning on evicting the Lot 5 resident due to lot violations but the others that
[C.B.] thought she was trying to evict was incorrect.” Id.
[10] The State was required to prove beyond a reasonable doubt that C.B.
communicated a threat to Pate with the intent to place Pate in fear of retaliation
for a prior lawful act. Ind. Code § 35-45-2-(a)(2) & (b)(1)(A). To establish that
C.B. committed intimidation, the State must prove that the legal act occurred
prior to the threat. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). If the
threat does not place the person in fear of retaliation for a prior lawful act, then
the conviction or adjudication cannot stand. Id.
[11] Considering the evidence most favorable to the adjudication, there is evidence
of a threat to commit a forcible felony communicated to Pate with the intent to
place Pate in fear. The issue here is whether the evidence is sufficient to
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 5 of 7 establish that the lawful act occurred before the threat was made. The trial
court, as fact-finder, correctly concluded that the State presented sufficient
evidence that the lawful act occurred before C.B.’s threat was made.
[12] In Roar v. State, 52 N.E.3d 940 (Ind. Ct. App. 2015), trans. granted, 54 N.E.3d
371 (Ind. 2016), sufficiency adopted and incorporated by reference, 54 N.E.3d 1001
(Ind. 2016), the threat, which placed the landlord in fear, was communicated to
her after the defendant saw the landlord place an eviction notice on the
defendant’s sister’s door. Therefore, the threat came after and in retaliation for
the prior lawful act—placing the eviction notice on the tenant’s door.
[13] Likewise, here, evidence was presented that C.B.’s threat came after a prior
lawful act. The delinquency report stated that Pate was planning on evicting
the Lot 5 resident. Appellant’s App. p. 6. Her testimony at the fact-finding
hearing was that C.B. screamed that he knew “what you’re doing, I know what
you’re doing, you’re getting rid of X. . . .” Tr. p. 43. On cross-examination,
Pate stated that “we did evict someone out of the park that he was talking
about.” Id. at 46. The record reflects that Pate, in her capacity as manager of
the mobile home community, had made the decision to evict the tenants in Lot
5, referred to by C.B. in his subsequent threat, for lot violations. Although the
record does not clearly establish precisely when the eviction took place, the
record does reflect that the decision to evict had been made and that C.B. was
aware of that decision prior to making his threat. Therefore, the evidence is
sufficient beyond a reasonable doubt to establish a prior lawful act.
Consequently, we affirm the trial court’s adjudication.
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 6 of 7 Conclusion [14] In light of the foregoing, we affirm the trial court’s adjudication of C.B. as a
delinquent child.
[15] Affirmed.
Brown, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016 Page 7 of 7